Opinion
16733-, 16733A Index No. 154610/21 Case No. 2022–00056 , 2022-03859
11-29-2022
FUNDO DE RECUPERAÇÃO DE ATIVOS – FUNDO DE INVESTIMENTOS EM DIREITOS CREDITÓRIOS NÃO PADRONIZADOS, Plaintiff-Respondent, v. CEAGRO AGRÍCOLA LTDA et al., Defendants-Appellants.
Greenberg Traurig, LLP, New York (Katherine M. Clemente of counsel), for appellants. Baker & Hostetler LLP, New York (Gonzalo S. Zeballos of counsel), for respondent.
Greenberg Traurig, LLP, New York (Katherine M. Clemente of counsel), for appellants.
Baker & Hostetler LLP, New York (Gonzalo S. Zeballos of counsel), for respondent.
Webber, J.P., Kennedy, Mendez, Shulman, JJ.
Judgment, Supreme Court, New York County (Arthur Engoron, J.), entered December 14, 2021, against defendants in plaintiff's favor in the amount of $39,333,180.96, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered on or about November 29, 2021, which granted plaintiff's motion for summary judgment in lieu of complaint, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
Plaintiff established prima facie entitlement to judgment as a matter of law. Unlike the affiant in ( Doe v. Intercontinental Hotels Group, PLC, 193 A.D.3d 410, 146 N.Y.S.3d 247 [1st Dept. 2021] ), the Brazilian attorney who submitted an affirmation on plaintiff's behalf had personal knowledge of the facts, and his affirmation properly attached documents (see Zuckerman v. City of New York, 49 N.Y.2d 557, 563, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ), many of which were Brazilian court records.
While the defense of champerty cannot be waived (see Red Tulip, LLC v. Neiva, 44 A.D.3d 204, 210 n. 2, 842 N.Y.S.2d 1 [1st Dept. 2007], lv dismissed 10 N.Y.3d 741, 853 N.Y.S.2d 283, 882 N.E.2d 896 [2008] ), there are no triable issues of fact precluding summary judgment. Although "the question of intent and purpose of the purchaser or assignee of a claim is usually a factual one to be decided by the trier of facts" ( Bluebird Partners v. First Fid. Bank, 94 N.Y.2d 726, 738, 709 N.Y.S.2d 865, 731 N.E.2d 581 [2000] [internal quotation marks omitted]), the Court of Appeals "has been willing to find that an action is not champertous as a matter of law" ( id. at 734–735, 709 N.Y.S.2d 865, 731 N.E.2d 581 [emphasis omitted]). Similarly, we have dismissed the defense of champerty on summary judgment (see Red Tulip, 44 A.D.3d at 208, 213–214, 842 N.Y.S.2d 1 ; BF Holdings I, Inc. v. South Oak Holding, Inc., 251 A.D.2d 1, 673 N.Y.S.2d 645 [1st Dept. 1998] ; Limpar Realty Corp. v. Uswiss Realty Holding, Inc., 112 A.D.2d 834, 834–836, 492 N.Y.S.2d 754 [1st Dept. 1985] ).
Judiciary Law § 489 "does not prohibit ... a purchase [of a judgment by one engaged in the business of collection and adjustment of claims] for the purpose of enforcing the judgment's collection" ( Concord Landscapers, Inc. v. Pincus, 41 A.D.2d 759, 341 N.Y.S.2d 538 [2d Dept. 1973] ). Plaintiff seeks to domesticate and enforce a Brazilian judgment. Although a foreign judgment must be recognized (i.e., converted into a New York judgment) before it can be enforced (see Byblos Bank Europe, S.A. v. Sekerbank Turk Anonym Syrketi, 12 Misc.3d 792, 794, 819 N.Y.S.2d 412 [Sup. Ct., N.Y. County 2006], mod on other grounds 40 A.D.3d 497, 837 N.Y.S.2d 54 [1st Dept. 2007], affd 10 N.Y.3d 243, 855 N.Y.S.2d 427, 885 N.E.2d 191 [2008] ), this is a mere "ministerial function" ( CIBC Mellon Trust Co. v. Mora Hotel Corp., 100 N.Y.2d 215, 222, 762 N.Y.S.2d 5, 792 N.E.2d 155 [2003] [internal quotation marks omitted], cert denied 540 U.S. 948, 124 S.Ct. 399, 157 L.Ed.2d 279 [2003] ).
Moreover, where a "mortgage loan has already fallen into default and been accelerated before its assignment to plaintiff" ( BF, 251 A.D.2d at 1, 673 N.Y.S.2d 645 ), there was no "merit to defendants’ claim of champerty" ( id. ). Nonparty Banco ABN AMRO S.A.’s loans to defendant Ceagro Agri´cola LTDA had already fallen into default – and ABN AMRO had already sued defendants and obtained a judgment – before it assigned the loans and any related rights (e.g., rights from litigation) to plaintiff. Unlike ( Aubrey Equities, Inc. v. SMZH 73rd Assoc., 212 A.D.2d 397, 622 N.Y.S.2d 276 [1st Dept. 1995] ), there is no indication that ABN AMRO and plaintiff are related or that the assignment was for token consideration.
Contrary to defendants’ claim, the defense of lack of standing does not implicate subject matter jurisdiction; hence, it can be waived (see CDR Cre´ances S.A.S. v. Cohen, 77 A.D.3d 489, 491, 909 N.Y.S.2d 697 [1st Dept. 2010] ; Security Pac. Natl. Bank v. Evans, 31 A.D.3d 278, 279, 820 N.Y.S.2d 2 [1st Dept. 2006], appeal dismissed 8 N.Y.3d 837, 830 N.Y.S.2d 8, 862 N.E.2d 86 [2007] ). In an agreement settling a prior New York action among the parties, defendants waived any and all objections and defenses to the entry and enforceability of a New York judgment; therefore, they waived the defense that plaintiff lacked standing. Furthermore, in a related Brazilian agreement, defendants acknowledged that they owed plaintiff money; this agreement also states that ABN AMRO assigned credits to plaintiff, "which now holds one hundred percent ... of the rights related to the credits associated with" ABN AMRO.